Citation Nr: 18151933 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 10-05 591 DATE: November 20, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a stress fracture of the left inferior pubic ramus is denied. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a stress reaction of the right midfoot and calcaneal is denied. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a stress reaction of the right tibia and knee is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s service-connected residuals of a stress fracture of the left inferior pubic ramus is manifested by subjective complaints of pain and limitation of function. 2. For the entire period on appeal, the Veteran’s service-connected residuals of a stress reaction of the right midfoot and calcaneal is manifested by subjective complaints of pain, with impairment consistent with no more than moderate symptoms. 3. For the entire period on appeal, the Veteran’s service-connected residuals of a stress reaction of the right tibia and knee has been manifested by subjective complaints of pain and limitation of motion. Flexion has not been limited to 30 degrees, nor has the disability resulted in limitation of extension, malunion of the tibia and fibula, dislocation or removal of semilunar cartilage, recurrent subluxation, or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected residuals of a stress fracture of the left inferior pubic ramus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5255. 2. The criteria for a disability rating in excess of 10 percent for service-connected residuals of a stress reaction of the right midfoot and calcaneal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284. 3. The criteria a disability rating in excess of 10 percent for service-connected residuals of a stress reaction of the right tibia and knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to June 2002, with additional time served in the Army National Guard. These matters are before the Board of Veterans’ Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in February 2012, May 2014, April 2015, December 2016, and September 2017 where they were remanded for additional development. They have since been returned for further appellate review. In September 2011 the Veteran testified at a videoconference hearing with a Veterans Law Judge (VLJ) who is no longer at the Board. The Veteran was offered another hearing, and in September 2014 the Veteran testified at a videoconference hearing before the undersigned VLJ. Transcripts of both hearings are of record. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. It is noted that in the September 2018 Appellant’s Post Remand Brief, the Veteran’s representative stated that if the appeals were not granted a remand was requested for a new examination given the amount of time which has passed since the last examination. As the evidence of record does not suggest a worsening of any of these disabilities since the last examinations, additional examinations are not necessary. Increased Ratings The Veteran was awarded service connection for residuals of a stress fracture of the left inferior pubic ramus, residuals of a stress reaction of the right midfoot and calcaneal, and residuals of a stress reaction of the right tibia and knee in a May 2004 rating decision. The Veteran did not appeal the rating decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed a claim for increased ratings for these disabilities in June 2008, and they were denied by the RO the following November, giving rise to the present appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When a particular service-connected disability is not listed in the rating schedule, it may be rated by analogy to a closely-related disability in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and “99.” 38 C.F.R. §§ 4.20, 4.27. A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a stress fracture of the left inferior pubic ramus. The Veteran contends that her residuals of a stress fracture of the left inferior pubic ramus (a left pelvic disability) are more severely disabling than reflected by the currently assigned 10 percent disability rating. For the reasons that follow, the Board finds that the claim must be denied. The Veteran’s left pelvic disability is rated as a disability of the hip and thigh and has been assigned a 10 percent rating by analogy under Diagnostic Code 5299-5255 for malunion of the femur. 38 C.F.R. §4.71a. Under Diagnostic Code 5255, where there is malunion of the femur with slight knee or hip disability, a 10 percent rating is assigned; where there is malunion with moderate knee or hip disability, a 20 percent rating is warranted; and where malunion produces marked knee or hip disability, a 30 percent rating is assigned. Still higher ratings are assignable for fracture of the surgical neck with false joint, or for fracture of the shaft or anatomical neck of the femur with nonunion. Id. The Board notes that there are a number of other Diagnostic Codes applying to the hip and thigh; the Board will consider if the assignment of different or additional ratings is appropriate. Diagnostic Code 5250 provides ratings for ankylosis of the hip. Diagnostic Codes 5251 and 5252 provide ratings for limitation of extension and flexion of the thigh, respectively, with Diagnostic Code 5253 providing ratings for limitation of abduction and rotation of the thigh. Diagnostic Code 5254 provides only an 80 percent rating for hip flail joint. 38 C.F.R. § 4.71a. The Veteran was first afforded a VA examination for her increased rating claims in September 2008. However, as the Veteran asserted in a contemporaneous statement, no examination of her pelvic disability was performed other than noting the Veteran’s report of pain on palpation over the superior and inferior ramus. Subsequent to the above examination, the Veteran’s increased rating claim was denied, resulting in the present appeal. At a Board hearing in September 2011, she described pain at the left pubis exacerbated by prolonged sitting, standing, and walking. Pursuant to the Board’s first remand in February 2012, an additional VA examination was afforded in February 2013. The examiner noted that the Veteran denied pelvic pain per se, but instead described flare-ups of lateral hip tightening associated with back pain and prolonged sitting. Physical examination confirmed pain to palpation, however, the Veteran was noted as having no functional loss and/or functional impairment of the hip and thigh, with normal range of motion, no evidence of painful motion, or decrease in function after repetitive-use testing. (Normal range of motion of the hip are from hip flexion from 0 to 125 degrees and hip abduction from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II.) Muscle strength testing was normal. Other than the Veteran’s hip pain, no other condition was diagnosed. Available diagnostic testing was negative for degenerative or traumatic arthritis. The matter was returned to the Board in May 2014, where it was again remanded to afford the Veteran an additional hearing, as the VLJ before whom the Veteran testified in September 2011 was no longer before the Board. At the additional hearing, which was held via videoconference before the undersigned VLJ in November 2014, the Veteran reported pelvic pain from sitting, prolonged standing, walking, and climbing stairs. She also described numbness and tingling down her legs that she noted may have been due to either her pelvic disability or her service-connected low back disability. Based in part on the Veteran’s testimony, the Board remanded the Veteran’s claim again in April 2015 and in December 2016 to afford her additional VA examinations, which were afforded in August 2015 and January 2017, with the latter performed by an orthopedic specialist. Both examination reports were consistent in their findings. The Veteran continued to report dull pelvic pain when seated, with flare-ups of pain in her “sitbones” that radiated anteriorly and aggravated her interstitial cystitis. Physical examination on both occasions noted normal flexion, extension, abduction, and rotation, including after repetitive-use testing. There was also no evidence of pain with weight bearing, pain on palpation, or crepitus. The Board notes that only the August 2015 examination was conducted immediately after repetitive use over time, with neither conducted during a flare-up. The examiners noted, however, that the findings in either examination were neither medically consistent or inconsistent with the Veteran’s statements describing functional loss after repetitive use or during a flare-up. Finally, muscle strength testing was normal and there was no ankylosis. Both examiners opined that the Veteran’s disability did not impact her ability to perform any type of occupational task. The Board does acknowledge, however, the Veteran’s consistent reports of pain when seated. The remainder of the evidence is essentially consistent with the above examination findings, with medical treatment records during the period on appeal noting the Veteran engaging in pelvic strengthening therapy from April to May 2014 to improve weakness in her core due her past pelvic fractures. A physical examination at the time revealed normal hip flexion, extension, and abduction. Internal and external pelvic floor examinations were also normal, as well as hip strength testing. While a mild deviation of symmetry was noted in her pelvis, it was attributed to her service-connected back disability, specifically, scoliosis. Based on the foregoing, the Board finds that the residuals of the Veteran’s stress fracture of the left inferior pubic ramus do not warrant a higher rating during the period on appeal. While the Veteran’s disability is currently rated as 10 percent disabling under Diagnostic Code 5255, treatment records and examinations are silent with respect to femur malunion, of the surgical neck with false joint, or fracture of the shaft or anatomical neck with nonunion. Detection or mention of these particular conditions would be expected if they existed. The Veteran’s pain is indicative of no more than slight hip disability. Thus, a higher rating is not warranted for impairment of the femur. 38 C.F.R. § 4.71a, Diagnostic Code 5255. Further, physical examinations during the period on appeal have not shown any loss of range of motion to warrant ratings under Diagnostic Codes 5251, 5252, or 5253. 38 C.F.R. § 4.71a. During examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that she has pain with difficulty sitting due to her pelvic injury, she has not described any loss of range of motion which would warrant a higher rating, and no treatment record shows greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, higher ratings are not warranted. The Board has considered whether a separate or higher rating is warranted under any other diagnostic code pertaining to disabilities of the hip and thigh, but has found none. As the evidence does not reflect ankylosis or a hip flail joint, Diagnostic Codes 5250 and 5254 are also not warranted. Id. Additionally, a higher disability rating is not warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca, 8 Vet. App. 202. The evidence shows that, for the entire appeal period, the service-connected left pelvic disability has been manifested by pain and ambulatory pain, and these symptoms and functional loss are contemplated in the 10 percent rating under Diagnostic Code 5255. 38 C.F.R. § 4.71a. The 10 percent rating contemplates the Veteran’s functional impairment during flare-ups or due to pain with activity. The Board recognizes that it is the intent of the rating schedule to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, however, the Veteran is already assigned a 10 percent rating for her healed in-service stress fracture of the left inferior pubic ramus, which is the minimum compensable rating allowable for the hip and thigh. The Board also acknowledges the Veteran’s contention that her disability, as residuals of a pelvic stress fracture, is improperly rated by analogy to an impairment of the femur. As noted previously, when a particular service-connected disability is not listed in the rating schedule, it may be rated by analogy to a closely-related disability in which not only the functions affected, but also the anatomical location and symptomatology, are closely analogous. 38 C.F.R. §§ 4.20. The assignment of a particular Diagnostic Code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is “more appropriate” than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board has identified no more appropriate diagnostic code, and neither has the Veteran. The anatomical location fits the medical evidence. Moreover, there is no medical evidence of muscle or nerve involvement, which would possibly warrant the assignment of different diagnostic codes. Thus, as the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a left pelvic disability, the claim must be denied. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 10 percent for residuals of stress reaction of the right midfoot and calcaneal. The Veteran contends that her residuals of a stress reaction of the right midfoot and calcaneal (a right foot disability) are more severely disabling than reflected by the currently assigned 10 percent disability rating. For the reasons that follow, the Board finds that the claim must be denied. The Veteran’s right foot disability is assigned a 10 percent disability rating by analogy pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284. Diagnostic Code 5284 addresses other foot injuries and provides for a 10 percent disability rating for moderate injuries, a 20 percent rating for moderately severe injury, and a 30 percent rating for severe injury. 38 C.F.R. § 4.71a. The Board notes that there are a number of other Diagnostic Codes applying to the feet; the Board will consider if the assignment of different or additional ratings is appropriate. 38 C.F.R. § 4.71a, Diagnostic Codes 5276 to 5284. Turning to the evidence, in a June 2008 statement submitted in support of her claim, the Veteran described a dull, throbbing pain in her feet, more on her right side, and especially on the top and metatarsals. She also reported swelling, pain with physical activity, and the use of arch supports. The Veteran was first afforded a VA examination for her increased rating claim in September 2008. Physical examination of the right foot revealed mild discomfort on palpation over the lateral foot and mild aching of the right calcaneus, with a normal longitudinal arch and no pain over the plantar fascia. The Veteran had full range of motion in all metatarsal joints as well as the right ankle. The examiner noted that diagnostic testing did not indicate any new fractures or bone destruction. Subsequent to the above examination, the Veteran’s increased rating claim was denied, resulting in the present appeal. At a Board hearing in September 2011, she described pain upon standing and walking, as well as swelling, aching, and tingling. Pursuant to the Board’s first remand in February 2012, an additional VA examination was afforded in April 2012. Physical examination and diagnostic testing of the Veteran’s right foot revealed no other foot diagnosis other than pain, including degenerative arthritis, and her stress fractures were noted as long-healed. Her feet were both noted to be tender in the dorsum, with no warmth, redness, bruising, swelling, or deformity. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with her in-service right foot stress fracture. Her gait was observed to be normal despite not only reported pain in her feet, but also in her back, knees, and pelvis. The matter was returned to the Board in May 2014, where, as previously noted, it was again remanded to afford the Veteran an additional hearing. At the additional hearing in November 2014, the Veteran reported foot pain, stiffness, use of orthotics, and that she was restricted in her choice of footwear. Based in part on the Veteran’s testimony, the Board remanded the Veteran’s claim again in April 2015 to afford her an additional VA examination by an orthopedic specialist. Upon VA examination in August 2015, the Veteran reported continued right foot pain on the top of her right foot, and the examiner noted no additional foot disability other than her reported pain. However, as the Board noted in yet another remand in December 2016, while the examiner noted right foot pain that did not contribute to functional loss, no explanation was given as to why the pain did not contribute to functional loss or cause additional limitations. Moreover, despite the Veteran’s assertions, the examiner opined that her right foot pain did not impact her ability to perform any occupational task (such as standing, walking, lifting, sitting, etc.). Additionally, the exam was conducted by an internist, rather than an orthopedic specialist. Thus, an additional examination was provided in January 2017 by a confirmed orthopedic specialist. The January 2017 examiner noted the Veteran’s previously diagnosed right foot fracture and reported pain. It was also noted that the Veteran did not report having any functional loss or functional impairment of the right foot, nor did flare-ups impact the function of the foot. Physical examination noted no other right foot disability other than the pain from her stress fracture, which the examiner opined was mild in severity. The right foot disability did not chronically compromise weight bearing or contribute to functional loss or additional limitations. As with the August 2015 examiner, it was opined that her right foot pain did not impact her ability to perform any occupational task. The Board notes that the examination report indicates that the Veteran did not use an assistive device for her foot disability, such as arch supports or custom orthotic inserts. However, the Board does acknowledge the Veteran’s assertions in various statements to the contrary. Finally, the Board notes that a record of private medical evaluation for right foot pain submitted by the Veteran in January 2017 indicates an additional diagnosis of hallux rigidus with hypermobility syndrome. Orthotics for additional arch support were provided. The remainder of the evidence is essentially consistent with the above examination findings, with VA treatment records during the period on appeal noting right foot pain and stiffness. Based on the foregoing, the Board finds that the Veteran’s right foot disability does not warrant a higher rating during the period on appeal. The Veteran’s right foot disability has been manifested primarily by pain, and was not noted to be more than moderate at any point during the period on appeal to warrant a higher, 20 percent rating under Diagnostic Code 5284. 38 C.F.R. § 4.71a. Even with consideration of pain on use, the Veteran’s right foot disability has not more nearly approximated moderately-severe foot injury. In fact, the medical assessment by the orthopedic specialist in January 2017 was that the right foot disability was of only mild severity. The VA orthopedist considered the Veteran’s report of symptoms, the examination findings, and the assessment of impairment and functional loss when making this assessment. No other medical record suggested that the pain and the other symptoms reported by the Veteran results in additional limitation of range of motion or limitation of function to a degree which more nearly approximates moderately-severe disability. Further, there is no indication that the disability is more appropriately rated under a separate Diagnostic Code. While hallux rigidus was diagnosed by a private foot and ankle physician in January 2017, the rating criteria does not offer a compensable evaluation unless the disability is severe and equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5281. No other disability of the foot was noted in the medical evidence. The Board has also considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca, 8 Vet. App. 202. The evidence shows that, for the entire appeal period, the service-connected right foot disability has been manifested by pain and ambulatory pain, and these symptoms and functional loss are contemplated in the 10 percent rating under Diagnostic Code 5284. 38 C.F.R. § 4.71a. The 10 percent rating contemplates the Veteran’s functional impairment in the right foot disability during flare-ups or due to pain with activity. While the Board acknowledges the Veteran’s reported use of orthotics, which is not specifically noted in Diagnostic Code 5284, the symptoms corrected/alleviated by the use of such have been addressed, and the Veteran’s medical treatment records and VA examinations describe the level of his disability when she is not using an appliance and those symptoms are contemplated under the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). The Board again acknowledges the intent of the rating schedule to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran is already assigned a 10 percent rating for her healed in-service stress reaction of the right foot, which is the minimum compensable rating allowable. Thus, as the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a right foot disability, the claim must be denied. 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a stress reaction of the right tibia and knee. The Veteran contends that her residuals of a stress reaction of the right tibia and knee (a right knee disability) are more severely disabling than reflected by the currently assigned 10 percent disability rating. For the reasons that follow, the Board finds that the claim must be denied. Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides that flexion of the leg limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. Id. Diagnostic Code 5261 provides that extension of the leg limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a 0 percent (noncompensable) rating. Id. For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. When the knee disability affects the meniscus, a 10 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 20 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Lastly, ratings can also be assigned for genu recurvatum and ankylosis of the knee (Diagnostic Codes 5256, 5263), as well as impairment of the tibia and fibula (Diagnostic Code 5262) for which the Veteran’s specific disability is currently rated. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides that malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating; malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating; and nonunion of the tibia and fibula with loose motion and requiring a brace warrants a 40 percent rating. Id. Turning to the evidence, the Veteran asserted in a June 2008 statement in support of her claim that she experienced pain, weakness, stiffness, swelling, heat, redness, drainage, instability, locking, abnormal motion, and numbness/tingling. She also asserted deformity and malunion of her knee. In September 2008, the Veteran’s private orthopedic specialist, Dr. C.W., submitted a summary of an August 2008 knee evaluation. Dr. C.W. diagnosed bilateral patellofemoral knee pain, with reduced flexion and extension in the right knee only, and radiographic abnormalities on only the left. The Veteran was first afforded a VA examination for her right knee increased rating claim in September 2008, where she reported pain in both knees, but more so in the right. Physical examination of the right knee revealed normal configuration and no effusion. There was mild discomfort on palpation around the right kneecap. The Veteran had full range of motion, including after repetitive-use testing, although increased pain, fatiguability, and lack of endurance were observed after repetitive use. The examiner noted good stability of all ligaments, and McMurray and Lachman tests were negative. The final diagnosis was patellofemoral syndrome with chronic pain. Subsequent to the above examination, the Veteran’s increased rating claim was denied, resulting in the present appeal. At a Board hearing in September 2011, she described knee pain when kneeling, squatting, and standing, often with “popping” and “cracking,” and that running, walking long distances, and climbing stairs aggravated her knee pain. The Veteran also noted instability and locking, and that she purchased an over-the-counter knee brace for days when her pain was elevated. Pursuant to the Board’s first remand in February 2012, an additional VA examination was afforded in April 2012. She reported pain with bending, squatting, and kneeling, as well as an inability to walk, sit, or stand long periods of time and a complete inability to run. Physical examination of the Veteran’s knees revealed bilateral subpatellar tenderness and palpable grinding indicative of chondromalacia patella. No other knee disorder was diagnosed and diagnostic testing revealed no significant findings. Range of motion testing indicated right knee flexion to 130 degrees and normal extension. There was no objective evidence of painful motion or hyperextension. Repetitive use testing resulted in right knee flexion reduced to 100 degrees, as well as additional pain and interference with sitting, standing, and weight bearing, bilaterally. Strength and joint stability testing were normal and there was no evidence or history of recurrent patellar subluxation/dislocation. Other than a history of shin splints on the right side, no other tibia/fibular impairment was noted nor was any meniscal condition. The matter was returned to the Board in May 2014, where it was again remanded to afford the Veteran an additional hearing, which was held via videoconference before the undersigned VLJ in November 2014. The Veteran reported knee pain and stiffness with “popping” and “clicking,” and that pain was aggravated when standing up, climbing stairs, and squatting. Based in part on the Veteran’s testimony, the Board remanded the Veteran’s claim again in April 2015 to afford her an additional VA examination by an orthopedic specialist. Upon VA examination in August 2015, with an addendum the following February, the Veteran reported continued right knee pain that inhibited squatting, sitting, running, walking on an incline, and climbing stairs. She reported flare-ups of knee pain with the above activities as well as functional loss; however, range of motion testing revealed normal flexion and extension, including during repetitive use. Strength and stability testing were also normal. However, as the Board would later note in December 2016, no diagnosis was provided by the examiner, nor was it clear whether there was testing on active and passive range of motion or with weight-bearing and nonweight-bearing. Additionally, the exam was conducted by an internist, rather than an orthopedic specialist. Thus, an additional VA examination was provided in January 2017 by a confirmed orthopedic specialist. In January 2017, the specialist noted the Veteran’s previously diagnosed right tibia stress fracture and her reported pain. The examiner diagnosed no other disability other than shin splints, and noted that assistive devices were not used for the knee as a normal mode of locomotion. Flare-ups were not reported. It was also noted that the Veteran did not report having any functional loss or functional impairment of the right knee, however range of motion testing revealed a decrease in flexion to 130 degrees with pain noted. Extension was normal. Repetitive use-testing revealed no additional functional loss, and there was no evidence of pain on weight bearing, localized tenderness or pain on palpation of the joint or associated soft tissue, or crepitus. While the Veteran was not being examined immediately after repetitive use over time, the examiner opined that the examination was neither medical consistent or inconsistent with the Veteran’s statements describing her functional loss with repetitive use over time. Additionally, muscle strength was not decreased and there was no instability. The examiner opined that her disability did not impact her ability to perform any occupational task. The remainder of the evidence is essentially consistent with the above examination findings, with the Veteran reporting in various lay statements that right knee pain and stiffness contributes to difficulty with sitting, running, walking long distances, climbing, and squatting. The Board notes that medical treatment records during the period on appeal contain sparse evidence of knee treatment outside of the above evaluations. Based on the foregoing, the Board finds that the Veteran’s right knee disability does not warrant a higher rating during the period on appeal. The Veteran’s service-connected stress reaction of the right tibia and knee is currently rated under Diagnostic Code 5262 for impairment of the tibia and fibula. Although shin splints were noted upon examination, the evidence is negative for any finding that the Veteran’s disability manifests malunion of the tibia in order to warrant a higher 20 percent rating. 38 C.F.R. § 4.71a. Notably, the significant symptoms include pain, stiffness, and slight limitation of motion. This is representative of no more than slight knee disability. Further, flexion in either knee has been limited to, at most, 130 degrees, to include after repetitive use, during flare-up, or because of other functional limitations. Extension has been normal. During examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that she has reduced motion in her right knee, she has not described a range of motion which would warrant a higher rating. In this regard, the Veteran has reported flare-ups during certain activities consisting of increased pain, stiffness, “popping,” and “clicking,” as opposed to a reduction in motion. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating, and no treatment record shows greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, higher ratings are not warranted for limitation of flexion or extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board has considered whether a separate or higher rating is warranted under any other diagnostic code, but has found none. As the evidence in this case does not reflect and the Veteran does not allege that she has a meniscal condition, genu recurvatum, or ankylosis, those diagnostic codes are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5263. The evidence is also negative for X-ray reports during the appeal period that indicate involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A separate rating also is not warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by medical professionals in this case throughout the course of the appeal, in September 2008, April 2012, August 2015, and January 2017, and the testing revealed no instability or laxity. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements. While the Veteran may experience a feeling that her knee may give way or is unstable, and thus has taken to purchasing a knee brace, if subluxation or lateral instability were present to a slight degree, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257. The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca, 8 Vet. App. 202. The evidence shows, however, that the service-connected right knee disability has been manifested by pain and ambulatory pain, and these symptoms and functional loss are contemplated in the 10 percent rating under Diagnostic Code 5262. 38 C.F.R. § 4.71a. The 10 percent rating contemplates the Veteran’s functional impairment in the right knee disability during flare-ups or due to pain with activity. While the Board acknowledges the Veteran’s reported use of a knee brace, which is not specifically noted in Diagnostic Code 5262, the symptoms corrected/alleviated by using such have been addressed, and the Veteran’s medical treatment records and examinations describe the level of her disability when she is not using an appliance and those symptoms are contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Finally, the Board recognizes that it is the intent of the rating schedule to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran is already assigned a 10 percent rating for her healed in-service stress reaction of the right tibia and knee, which is the minimum compensable rating allowable for the knee joint. Thus, as the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a right knee disability, the claim must be denied. 38 C.F.R. §§ 4.3, 4.7. Regarding all the claims being denied herein, the Board is sympathetic to the Veteran’s lay statements that her disabilities are worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). She is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as a whole (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. The Board notes that it can nevertheless determine whether the Veteran’s claims should be referred to the Director of VA’s Compensation Service (Director) for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the schedular ratings for that disability are inadequate when comparing the level of severity of the disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and an assigned rating is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). When the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director for completion of the third step – a determination of whether the claimant’s disability picture requires the assignment of an extraschedular rating. Id. Here, the Board finds that all the symptomatology and impairment caused by the orthopedic disabilities on appeal are specifically contemplated by the rating criteria, and no referral is required. The Veteran’s disabilities have been manifested by symptoms that include limitation of motion of the joints, pain, stiffness, disturbance of locomotion, interference with standing, sitting, weight-bearing, and squatting, difficulty climbing stairs, and localized tenderness. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. The rating criteria in this case provides ratings for painful joints and limitation of motion, including motion limited due to orthopedic factors such as pain, stiffness, and swelling, as well as interference with sitting, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5255, 5262, 5284. Thus, in this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on her daily life. Even were the first prong of Thun met, which the Board finds it is not, the record indicates that the Veteran continues to be employed full-time despite any limitations caused by her disabilities, and marked interference with employment is not otherwise shown. Additionally, there is no indication that the Veteran’s disabilities have necessitated frequent hospitalizations. The Board points out that during much of her appeal for the increased rating claims for the pelvic, knee and foot disabilities being denied herein, the Veteran’s arguments concerning her symptomology and functional impairment included symptoms related to additional disabilities of the right pelvis, sacrum, and low back for which she was seeking service connection. In November 2015 and March 2016 rating decisions, the additional service connection claims were granted. Thus, in the absence of exceptional factors associated with the disabilities on appeal, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b)(1) are not met. (Continued on the next page) Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel